Jean Country, And Brook Shopping Centers, Inc.

JEAN COUNTRY Jean Country, and Brook Shopping Centers, Inc, as Nominee for Dollar Land Syndicate and Local 305, Retail & Wholesale Employees Union, AFL-CIO Case 2-CA-19952 September 27 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN CRACRAFT AND HIGGINS On July 17, 1984 Administrative Law Judge Steven Davis issued the attached decision The General Counsel the Charging Party, and Re spondent Jean Country filed exceptions and sup porting briefs The NLRB has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge s rulings, findings, and conclusions only to the extent consistent with this Decision and Order I INTRODUCTION AND APPLICABLE PRINCIPLES This case involves picketing by nonemployee union agents carrying signs to inform the public that the employees of a particular store in a large shopping mall were not represented by a union The issue is the location of the picketing-whether those who control the mall property around the store could lawfully prevent the pickets from com municating their message to the public near the store entrance The underlying question-which employers, em ployees unions the Board, and the courts have grappled with for decades in varying factual pat terns-is how to accommodate the exercise of rights guaranteed under Section 7 of the Act with a property owner s right to protect his property against intrusions by those whom he has not invit ed to enter In Fairmont Hotel 282 NLRB 139 (1986) the Board announced a new test under which the strength of the claim of Section 7 rights would be balanced against the strength of the prop erty rights involved with the stronger right pre vailing Id at 142 If the Section 7 right was deemed stronger access could not be prohibited If the property right was deemed stronger denial of access would be found lawful If the rights were deemed relatively equal in strength, then the ques tion whether those seeking to exercise Section 7 rights had reasonable alternative means of exercis ing those rights (i e, alternatives not involving tres pass on the property involved) would become de terminative Ibid In cases decided subsequent to Fairmont, it became apparent that individual Board members differed over interpretation and application of the I1 Fairmont test 1 On consideration of our experience in applying the Fairmont test and on reexamination of the two principal Supreme Court cases that must guide our decisions on this issue we believe that further clarification of the Board s approach in access cases is necessary In particular for reasons fully discussed below we have reevaluated the factor of reasonable alternative means in our over all assessment of competing claims of Section 7 and property rights We specifically conclude that the availability of reasonable alternative means is a factor that must be considered in every access case 2 In NLRB v Babcock & Wilcox Co 351 U S 105 (1956), a case involving an industrial plant employ er s refusal to allow nonemployee union organizers access to its private parking lot to distribute organs zational literature to employees, the Court declared that in cases in which the exercise of Section 7 rights comes into conflict with property rights the Board must seek to accommodate the two The Court set out the following principles to guide that accommodation Accommodation between the two must be obtained with as little destruction of one as is consistent with the maintenance of the other [W]hen the inaccessibility of employees makes ineffective the reasonable attempts by nonemployees to communicate with them through the usual channels the right to ex clude from property has been required to yield to the extent needed to permit communication of information on the right to organize ' E g Brownings Foodland 284 NLRB 939 at in 4 (1987) Sisters Chicken & Biscuits X85 NLRB 796 at in 5 (1987) A plurality of the original three member majority in Fairmont agreed that under Fairmont if the property claim asserted outweighed the Sec 7 claim asserted or vice versa when analyzed apart from the factor of reasonable alternative means of communication then it was not necessary to evaluate alterna tive means Member Johansen the other member of the Fairmont mason ty has consistently viewed the factor of alternative means of communica tion as one that is always of some significance in assessing the weight of the Sec 7 claim Chairman Stephens expressed his disagreement with the plurality view in his separate concurring opinion in Fairmont 2 To the extent that Fairmont did express the plurality view that con sideration of the alternative means factor must sometimes be excluded from our determination whether and to what extent property rights should yield to the exercise of Sec 7 rights it is overruled Furthermore notwithstanding the view of individual Board members that the Fairmont test barred consideration of alternative means in some circumstances the great number of cases decided under Fairmont in volved a finding by at least a majority of the Board panel that one right asserted did not clearly outweigh the other It was therefore necessary to examine the availability of reasonable alternative means in those cases See Group Health Dental Facility 288 NLRB 200 (1988) G W Gladders Towing Co 287 NLRB 186 (1987) SCNO Barge Lines 287 NLRB 169 (1987) Medina Super Duper 286 NLRB 728 (1987) Homart Development Co 286 NLRB 714 (1987) Emery Realty 286 NLRB 372 (1987) L & L Shop Rite 285 NLRB 1036 (1987) Skaggs Co 285 NLRB 360 (1987) Providence Hospital 285 NLRB 320 (1987) Smittys Super Markets 284 NLRB 1188 (1987) Greyhoand Lines 284 NLRB 1138 (1987) Browning s Foodland supra 291 NLRB No 4 12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD [I]f the location of a plant and the living quarters of the employees place the employees beyond the reach of reasonable union efforts to communicate with them the employer must allow the union to approach his employees on his property Id at 112 113 Applying that test to the record before it the Court found that the nonemployee organizers were not entitled to access because the employees lived in nearby communities and could be reached by the usual methods of imparting in formation, i e by literature sent through the mail home visits and telephone calls 351 U S at 107 fn 1 113 Babcock thus holds that where persons other than employees of an employer that owns or controls the property in question are concerned alternative means must always be considered a property owner who has closed his property to nonemployee communications on a nondiscrimina tory basis cannot be required to grant access where reasonable alternative means exist but in the absence of such means the property right must yield to the extent necessary to permit the organiz ers to communicate with the employees 3 In Hudgens v NLRB 424 U S 507 (1976) which involved efforts of certain warehouse workers who were engaged in an economic strike in support of their collective bargaining demands to picket a retail store of their employer located in a large shopping mall the Court (1) reaffirmed the Babcock accommodation principle 4 (2) extended it beyond organizational campaigns to the exercise of other categories of Section 7 rights but (3) suggested that in making the accommodation the Board must take into account the character of all the rights in volved because the locus of the accommodation may fall at differing points along the spectrum depending on the nature and strength of the re spective § 7 rights and private property rights as serted in any given context Hudgens supra 424 U S at 522 Although the Court did not specifical ly refer to the alternative means test the con tinning relevance of that test is implicit in the Court s reiteration of the necessity of seeking an accommodation that produces as little destruction of one [right] as is consistent with the maintenance of the other Id at 521 quoting Babcock & Wilcox supra 351 US at 112 When individuals seeking to exercise Section 7 rights have reasonable 8 We of course continue to adhere to the distinct analytical view that a denial of access for Sec 7 activity may constitute unlawful disparate treatment where by rule or practice a property owner permits similar activity in similar relevant circumstances See e g Babcock supra at 112 Providence Hospital 285 NLRB 320 (1987) 4 See also Central Hardware Co v NLRB 407 U S 539 (1972) means of exercising them without trespassing pre cluding access to the private property in question does not threaten the destruction of the Section 7 rights When such individuals have no reasonable alternative means then at least some yielding of the property right may be required to avoid destruc tion of the Section 7 right 5 We recognize that one problem confronted by the Board in Fairmont when considering the factor of alternative means was the anomaly first noted in Giant Food Markets v NLRB 633 F 2d 18 24 (6th Cir 1980) that making access decisions turn on the presence or absence of alternative means of communication could result in allowing access for the exercise of core Section 7 rights such as em ployee organizing less readily than for less central rights such as area standards activity This is so because the intended audience of an organizing campaign-the employees of a particular employ er-is more readily identifiable and thus more easily reachable away from the property at issue than is the intended audience of area standards publicity-an audience that usually consists of po tential customers of the employer (or customers of a business that distributes the employers products) We believe that the significance of this anomaly can be minimized by making it clear that a union s own definition of the audience it seeks to reach through the activity in question will not necessarily control the analysis of what other means of com munication constitute reasonable alternatives For example if a union is seeking to protest a particular employers maintenance of wage and working con ditions that it believes is undermining area stand ards a claim that the union s intended audience consists of the customers of every establishment that has even a remote connection to that target em ployer will not necessarily warrant access to any and all sites at which such customers may be found even if access to private property might be necessary to reach the customers at one such site In any event the Giant court itself acknowledged that the perceived anomaly was perhaps inevita ble 6 Furthermore we are charged with seeking 5 In Sears, Roebuck & Co v San Diego County Council of Carpenters 436 U S 180 (1978) the Court in reviewing the preemption doctrine as it affected a state court trespass claim affirmed Hudgens elaboration of the Babcock principle noting that its application requires the limited yielding of the right to exclude from private property when alternative means are ineffective 436 US at 204 and fn 39 With regard to subsequent state ments of the Sears Court we note that it was not itself engaged in an accommodation analysis and thus we need not infer an intent to elimi nate the alternative means inquiry from the speculation about the relative chances of the Board finding that area standards pickets should be grant ed access to Sears property Id at 205-206 and In 42 See also Justice Blackmun s concurring opinion in Sears id at 211 and Giant Food Mar kets v NLRB 633 F 2d 18 fn 13 (6th Cir 1980) 6 633 F 2d at 24 JEAN COUNTRY to avoid the destruction of rights if at all posse ble and with permitting infringements on one right only to the extent necessary to maintain the other With this mandate we cannot conclude that we should ever refrain from making any inquiry at all into whether a denial of access will entirely pre clude the exercise of a Section 7 right or whether access is totally unnecessary to the exercise of the right We read Babcock & Wilcox as indicating that the General Counsel bears the initial burden on the al ternative means factor i e that the General Court sel must show that without access to the property those seeking to exercise the right in question have no reasonable means of communicating with the audience that exercise of that right entails Babcock & Wilcox supra 351 US at 113-114 7 This does not necessarily mean that in order to show that os tensible alternative means of reaching a relevant audience are not reasonable alternatives the Gener al Counsel must show that the party engaging in the Section 7 conduct actually attempted those means and found them futile What is required is simply a clear showing based on objective consid erations rather than subjective impressions that reasonably effective alternative means were un available in the circumstances In some contexts the attempt must in fact have been made to support an objective conclusion that an asserted alternative is not reasonable although in others the unreason ableness of the asserted alternative may be clear without such an attempt See Emery Realty 286 NLRB 372 fn 13 (1987) We note however that generally it will be the exceptional case where the use of newspapers radio and television will be fea sible alternatives to direct contact See e g NLRB v United Aircraft Corp, 324 F 2d 128 130 (2d Cir 1963) ( [t]he predictable alternatives [to direct communication] bear without exception the flaws of greater expense and effort and a lower degree of effectiveness ) Because the Supreme Court in Hudgens indicated that there is a spectrum of Section 7 rights and private property rights and that the place of a par ticular right in that spectrum might affect the out come of a case, we are not free to assume that ° Of course there is an initial burden on the party claiming the proper ty right to show through testimonial or documentary evidence that it has an interest in the property and what its interest in the property is A party has no right to object on the basis of other persons property inter ests and an employers mere objections to having union pickets outside its establishment does not in itself rise to the level of a property interest See Barkus Bakery 282 NLRB 351 (1986) enfd mem sub nom NLRB v Caress Bake Shop 833 F 2d 306 (3d Cir 1987) There the Board found it unlawful for the respondent employer to eject union organizers from pn vately owned property which abutted the employers plant but which was under the control of another establishment that was not shown to object to the organizers presence 282 NLRB 351 at fn 2 13 every Section 7 right is of equal weight when in trusions on private property are concerned Thus in cases when a property owner has especially compelling reasons for barring access and when the Section 7 right is less central than for example the right of employees to organize or to protest unfair labor practices we may more readily find that means of communication other than those entailing entry onto the property in question constitute a reasonable alternative Factors that may be relevant to assessing the weight of property rights include but are not limit ed to the use to which the property is put the re strictions if any that are imposed on public access to the property and the property s relative size and openness (The term property includes both open spaces and buildings-whichever is the situs to which those asserting Sec 7 rights seek access ) Factors that may be relevant to the consideration of a Section 7 right in any given case include but are not limited to the nature of the right, the iden tity of the employer to which the right is directly related (e g the employer with whom a union has a primary dispute) the relationship of the employer or other target to the property to which access is sought the identity of the audience to which the communications concerning the Section 7 right are directed and the manner in which the activity re lated to that right is carried out Factors that may be relevant to the assessment of alternative means include but are not limited to the desirability of avoiding the enmeshment of neutrals in labor dis putes 8 the safety of attempting communications at alternative public sites the burden and expense of nontrespassory communication alternatives and most significantly the extent to which exclusive use of the nontrespassory alternatives would dilute the effectiveness of the message Although we have identified the foregoing fac tors within categories labeled property rights Section 7 rights and alternative means these categories are not entirely distinct and self con tamed There is a certain interdependence A given factor may be relevant to more than one inquiry Thus for example whether a particular situs is a vast expanse or cramped quarters may be relevant both to defining the strength of the property right and to deciding the reasonableness of conducting the Section 7 activity on its perimeter as an alterna tive means of communication Similarly the identi fication of an intended audience may be relevant 8 See Giant Food Markets v NLRB supra 633 F 2d at 26 (approving consideration of this factor but finding no danger of enmeshment of neu trals on the record before it) We note however that the possibility of enmeshing neutrals is not a sufficient ground in itself for compelling access to private property 14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD both to the identification of the Section 7 activity (e g organizing employees or protesting an em ployer s unfair labor practices to the public) and to determining what means of communication consti tute reasonable alternatives Accordingly in all access cases our essential concern will be the degree of impairment of the Section 7 right if access should be denied as it bal antes against the degree of impairment of the pri vate property right if access should be granted We view the consideration of the availability of reason ably effective alternative means as especially signif icant in this balancing process In the final analysis however there is no simple formula that will im mediately determine the result in every case As the Court made clear in Hudgens we are trying to accommodate interests along a spectrum Inevita bly as we apply our analysis in future cases some patterns will become more clear For example denial of access will more likely be found unlawful when property is open to the general public than when a more private character has been main tained 9 But as with other legal questions involv ing multiple factors the nature of the problem as revealed by unfolding variant situations inevitably involves an evolutionary process for its rational re sponse not a quick definitive formula as a compre hensive answer Electrical Workers IUE Local 761 v NLRB 366 US 667 674 (1961) II THE RELEVANT FACTS Respondent Brook Shopping Centers Inc (Brook) operates the Cross County Shopping Center in Yonkers New York 10 The shopping center privately owned comprises 2 large depart ment stores and 104 smaller specialty stores in an open air mall Generally the specialty stores are clustered together and grouped in aisles in the cen tral part of the mall property with one of the de partment stores located at the western end of the cluster and the other at the eastern end The entire group of stores is surrounded by parking lots hold ing up to 5400 cars the lots run to the perimeters of the mall property The shopping center is bounded by the Cross County Parkway Kimball Avenue Vredenburgh Avenue, and Central Park Avenue, all public roads providing access to the parking lots and the stores through the shopping center s eight entrances The mall is also accessible by public transportation i e bus and taxi service 9 Compare e g Scott Hudgens 230 NLRB 414 (1977) (denial of access to large shopping center for employee picketing in support of economic strike found unlawful) with Providence Hospital 285 NLRB 320 (1987) (denial of access to private property of hospital for picketing in support of union s collective bargaining stance found lawful) to The owner of the shopping center is not a party to this proceeding and is not identified in the record passengers are dropped off and picked up on the mall property near the stores The mall is open to the public for shopping 12 hours a day Monday through Saturday and for 6 hours on Sunday It accommodates between 10 000 and 20 000 people a day As a legal procedure for maintaining the pn vately owned character of the mall property on Christmas Day each year the shopping center s en trances are barricaded and signs are posted stating that the mall is private property Respondent Jean Country is engaged in the retail sale of casual clothes operating a number of spe cialty stores in the New York City metropolitan area One of its stores is located among the special ty shops at the mall Like the other stores it leases its premises from Respondent Brook The Jean Country store is located in the center of one of the aisles of specialty stores Chess King By George and Jean West-stores that sell merchandise similar to Jean Country s-are located on the same aisle and nearby Chess King and By George have col lective bargaining agreements with the Union The aisle is split into two parallel walkways by an area of grass trees and shrubbery that runs up the center of the aisle On Jean Country s side of the aisle and specifically in the area in front of the store the walkway is about 14 feet wide from the storefront to the grassy center area Judging from the testimonial and photographic evidence it is ap parent that Jean Country s storefront is about 20 feet across there is an overhang above the store that is 10 to 15 feet from the ground and that pro trudes beyond the storefront about 8 feet The store has a rear entrance not open to the public facing on one of the parking lot areas Uncontra dicted testimony at the hearing established that the nearest public property to the Jean Country store is at the Central Park Avenue entrance to the mall approximately one quarter mile away other public property is located at mall entrances farther away Jean Country opened its store at the shopping center on September 22 1983 11 In late July or early August, while the store was under construc tion Gaetano Mangano the Union s business repre sentative visited the location and spoke with Alvin Feldman, Jean Country s store manager Giving Feldman his business card Mangano told him that he understood that other Jean Country stores in the New York area were unionized that Local 305 represented the employees at most of the stores in the mall and that Local 305 would be the Union Feldman would deal with Feldman responded of firmatively but briefly and gave Mangano the names of other persons to contact apparently Jean i i All dates hereinafter are in 1983 JEAN COUNTRY Country management Mangano and Feldman had two more similar conversations at the store once in late August or early September and once in late September just after the store opened for business On an occasion in late September or early October Mangano entered the store and spoke with several of Jean Country s employees on the selling floor He talked about the advantages of joining the Union and he distributed his business card and ap plications for union membership requesting the employees to sign the applications if they wished to have the Union represent them Mangano was interrupted by the store s assistant manager who told him that the store was nonunion and asked him to leave Mangano complied On the morning of October 12 Mangano went to the mail office of Ray Cerbone the general manager of the shopping center and an admitted agent of Respondent Brook Finding Cerbone not present, Mangano left a message that he intended to place an educational picket line at the Jean Country store beginning in about an hour A little later as Mangano was taking picket signs from his car he was spotted by Feldman when Mangano informed him that the signs were for the Jean Country store Feldman called Cerbone Soon thereafter, Mangano met with Cerbone in the shop ping center Mangano asserted that he had a right to picket within the mall and he presented a letter dated in 1980 concerning the Union s organizing activities and rights at another private shopping mall in the area Cerbone responded that the shop ping center s rules prohibited picketing and solicita tion Both Mangano and Cerbone then referred the matter to their attorneys A short time later, when Mangano informed Cerbone that the Union s attor ney had advised that the picketing would be al lowed Cerbone again replied that the Union could not picket because the activity was prohibited by the mall rules Mangano and two retired union members en gaged in picketing in front of the store beginning at 11 30 am and lasting for just under 1 hour 12 Two picket signs were used each bearing the same message To the Public Jean Country is not union The maintenance of a non union store is a threat to wages hours and conditions established by the union Local 305, A F L -C 10 120 Saw Mill River Road Hastings on Hudson, New York At least one picket and sometimes two walked back and forth on the walkway in front of the 12 None of the pickets had ever been employed by Respondent Jean Country 15 store and beneath the overhang They walked about 2 feet away from the stores front windows During the picketing customers walked past unob structed and entered the store Mangano spoke with passersby telling them that the Jean Country store was nonunion asking them not to patronize it and to shop instead at similar stores in the mall whose employees were unionized He specifically pointed out Chess King and By George which as indicated above were nearby and had collective bargaining agreements with the Union On notification that picketing was being carried out at the store Frank Pucilla chief of security at the mall and an admitted agent of Respondent Brook called the Yonkers police and requested that a police officer be sent to the center Subse quently Police Sergeant John Skelton arrived at the scene pursuant to a report of a strike at the store 13 Mangano told Skelton that the picketing was informational and not in support of a strike, and Pucilla added that attorneys for the Union and the mall were discussing whether the Union would be permitted to picket in front of the store Skelton entered the store and spoke with Feldman who told him that the store was not being struck that he had no dispute with the Union and that his em ployees were not unionized When Skelton came out, Pucilla told him that Mr Marks had just seen the pickets and wanted them off the mall property 14 Skelton then told Mangano that, based on Pucilla s directive he might be arrested for tres passing if he continued to picket in the mall He also told him that any further picketing must be done on the public roads beyond the mall property At this point Mangano ceased all picketing Subse quently the Union filed unfair labor practice charges and a complaint issued on the charges Regarding the use of the mall property the record shows there is an annual charity fair and an annual arts and crafts fair held at the mall Each of the fairs lasts 3 days and involves tables set up for various organizations and individuals to sell mer chandise and raffle tickets-about 40 tables for the arts and crafts fair and 70 to 75 tables in the case of the charity fair Those organizing the fairs must inter alia obtain permission in advance from the mall authorities and post maintenance and insur 13 The record is not clear whether Skelton was responding to Pucilla s call or to a call Mangano made earlier informing the police of the intend ed picketing 14 Mr Marks is apparently an official of Marks Realty & Improve ment Company Both Cerbone and Pucilla testified that Marks Realty was their employer and Cerbone further testified that that company managed the mall property for Respondent Brook We note that neither Mr Marks nor Marks Realty is a party to this proceeding but that in any event both Cerbone and Pucilla are admitted agents of Respondent Brook 16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ance bonds Initially these fairs had been located on the mall walkways but because the tables inter fered with pedestrian traffic they were moved to a specific parking lot on the property The judge found that as alleged in the com plaint the Respondents in advance of the picket ing demanded that the Union refrain from such conduct on the Respondents property and that subsequently the Respondents caused the Yonkers police to threaten the pickets with arrest for tres pass The judge concluded that the lawfulness of the Respondents ejection of the pickets turned on the objective of the picketing in particular he held that if the pickets had a recognitional or organiza tional objective they could be lawfully ejected whereas if they had an area standards objective the Respondent could not lawfully eject them He reasoned that if the objective were recognitional or organizational then the Union s intended audience must be the Jean Country employees and the pick ets must be analogous to the nonemployee organiz ers in NLRB v Babcock & Wilcox supra Finding that the Union had reasonable alternative means of communicating with the employees he concluded that access need not be granted for picketing with organizational or recognitional objectives Because he concluded that the picketing had those objec tives he dismissed the complaint In an alternative finding assuming arguendo that the picketing had an area standards object the judge reasoned that ejection of pickets carrying signs for that purpose would be unlawful because they lacked a reasona ble alternative means of communicating with the intended audience of such picketing-an audience that would include potential customers of the Jean Country store Although we adopt the judge s findings concern ing the Respondents demand and their causing the police to threaten the pickets we do not adopt his analysis of the appropriate accommodation of the Section 7 right and private property right exercised in the circumstances here Pursuant to our accom modation of the respective rights of the parties we conclude that the Union was entitled to the limited access which it in fact claimed and that the Re spondents conduct violated Section 8(a)(1) III ANALYSIS We examine first whether the Respondents had genuine interests in the mall property as this is a threshold question in the accommodation analysis See above at footnote 7 Respondent Brook is the operator of the privately owned mall and as such it is apparent that Brook is an agent of the mall s owner and the lessees of the stores Accordingly its conduct was based on a legitimate interest in the mall property generally Respondent Jean Country has a leasehold in its store premises at the mall in sofar as it acted in conjunction with Respondent Brook concerning the mall property in front of its store its conduct was based on a legitimate proper ty interest With the Respondents interests established we proceed to an examination of the relative strength of their right to maintain the privacy of the proper ty The mall consists of 106 stores it is open to the public for shopping 7 days a week for a substantial number of hours each day Thus the commercial nature and purposes of the mall property are clear it is a single convenient location for the sale and purchase of a broad range of consumer products and services Further there are eight entrances to the mall from four public roads large parking areas and bus and taxi service on the mall proper ty the general design clearly being ease of public access to the stores Between 10 000 and 20 000 people-customers and potential customers-enter the mall property each day free to park their cars and walk in the common areas and walkways and to patronize the various stores if they choose The photographic exhibits of the aisle where the Jean Country store is located show the stores lined up on each side with a central area of grass shrub bery and trees thus lending the aisle the appear ance of a public street but without the problems of parking and traffic It is readily apparent that the mall has and is intended to have certain quasi public characteristics See Scott Hudgens 230 NLRB 414 417 ( 1977) see also Group Health Dental Facility 288 NLRB 200 and dissent at 24 fn 22 (1988) These characteristics enhance the mall s commercial nature and purpose At the same time however the quasi public traits tend to lessen the private nature of the property because it is appar ent that the public is extended a broad invitation to come on the property and not necessarily with the specific purpose of purchasing a particular product or service We also note that Respondent Brook does not restrict the use of the mall property to the leasing of stores and the immediate commercial goals of the lessees Thus Brook permits annual charity and arts and crafts fairs to be held in one of the parking lot areas Although Brook requires inter alia the posting of maintenance and property bonds by those who organize the fairs there is no indication that it charges a rental fee for the space the fairs use There is also no indication that the invitation to the public to attend the fairs is any less broad than the one extended for the patronage of the mall s stores JEAN COUNTRY 17 With respect to restrictions on public access to the mall we note that Shopping Center Manager Cerbone referred to rules that prohibited solicita tion and picketing in denying Mangano permission to picket However no such rules were placed in evidence 15 Further although we may assume that the Respondents have rights in some degree to control access to the property during business hours and to control the public s conduct on the property no pertinent regulations have been put before us 16 Based implicitly on their right to control the mall property the Respondents contend that the Union s picketing was impermissible because taking place on the walkway of one of the aisles of specialty stores it was an obstruction to pedestrian traffic and created the possibility of altercations if the pickets should bump into those passing by The evidence does not support this argument There were no more than two pickets at any time patrol ling Jean Country s 20 foot storefront They walked back and forth about 2 feet from the store window beneath an overhang 10 to 15 feet high on a walkway 14 feet wide There was no showing that customers or passersby were obstructed during the course of the picketing And we see no reason able possibility that this conduct would create a hazard to pedestrian traffic even at the mall s most crowded times because of the width of the walk way the small number of pickets and their physi cal movement-movement that was not significant ly different from that of other pedestrians making their way up and down the walkway or stopping at stores and store windows as they pass Taking account of all the factors above it is ap parent that strict maintenance of the privacy of the mall property during business hours is not an over riding concern and in fact is not generally desira ble because the presence of the public in large numbers is intrinsic to the commercial goals of the lessees and Respondent Brook Accordingly we find that the private property right asserted by the Respondents in reaction to the Union s picketing is quite weak in the circumstances Regarding to the Union s picketing and the right asserted thereby we agree with the judge s conclu Sion that the picketing had an organizational and recognitional objective This is evident in Business Representative Mangano s three requests of Store 15 We note as did the judge that Respondent Brook permitted picket ing at the New York Telephone Company s store at the shopping mall prior to the picketing at issue here The record however is insufficient for us to evaluate the nature and circumstances of that picketing for put poses of a disparate treatment analysis See fn 3 supra 16 We assign little weight to the annual procedure of barricading and posting the mall property on Christmas Day as this merely affirms that the property is in fact privately owned See Emery Realty 286 NLRB 372 fn 1 (1987) Manager Feldman for recognition and his solicita tion of Jean Country employees in the store during the 3 month period prior to the picketing the letter Mangano presented to Cerbone on the day of the picketing concerning the Union s organizing of forts and the absence of any disclaimer of the Union s desire to represent the Jean Country em ployees In its brief to the Board Respondent Jean Coun try argues that the picketing was prohibited by Section 8(b)(7)(C) and thus was unprotected by Section 7 The General Counsel and the Union contend that the picketing was privileged under the publicity proviso of Section 8(b)(7)(C) We note that although the picketing had an organizational and recognitional objective it truthfully advised the public that Respondent Jean Country was a nonunion employer and there is no evidence that it had an effect of inducing a cessation of deliveries or other services Accordingly we find that the picketing was lawful under the publicity proviso of Section 8(b)(7)(C) See e g San Francisco Local Joint Executive Board of Culinary Workers v NLRB 501 F 2d 794 800-801 (D C Cir 1974) Retail Clerks Local 324 (Barker Bros) 138 NLRB 478 (1962) affd 328 F 2d 431 (9th Cir 1964) see also Retail Clerks Local 1404 (Jacobs Downtown) 140 NLRB 1344 (1963) Carpenters St Louis Coun cil (Vestaglas Inc) 136 NLRB 855 (1962) We note further that the immediate goal of the picketing was to persuade potential customers not to patron ize the Jean Country store and that during the course of the picketing Mangano asked passersby to shop at unionized stores in the mall and specifi cally directed them to Chess King and By George nearby stores with similar merchandise that had collective bargaining relationships with the Union It is thus apparent that the Union s picketing was conducted at least in part on behalf of the union ized employees of those stores that were in compe tition with the nonunion Jean Country store Al though such conduct has lesser significance in the scheme of Section 7 than direct organizational so licitation or the protestation of unfair labor prac tices at the situs of the primary employer it is nev ertheless undertaken for the mutual aid or protec tion of employees and is clearly protected by Sec tion 7 See Smitty s Super Markets 284 NLRB 1188 (1987) in which we found similar picketing pro tected by the Act Regarding other aspects of the Union s protected conduct the picketing took place pursuant to a labor dispute between the Union and Respondent Jean Country concerning its store employees and the store s nonunion status Jean Country was thus the Union s target and the picketing was conduct 18 DECISIONS OF THE NATIONAL LABOP RELATIONS BOARD ed at the situs of the dispute Additionally as noted in the evaluation of the Respondents private prop erty right the picketing was limited in manner peaceful and unobstructive Taking account of the relative strength of the Section 7 right in this case we find that the pro tected picketing that took place is not on the stronger end of the spectrum of Section 7 rights Other factors-the picketing s situs and its peaceful manner-did not diminish the strength of the right in the circumstances but neither did they substan tially enhance it However it is a right that is cer tainly worthy of protection against substantial im pairment We turn then to the question of the Union s al ternative means of communicating its message The pickets intended audience clearly was the potential customers of the Jean Country store 17 The single alternative worthy of extended consideration in these circumstances is the possibility of the Union s communicating its message from public property at the entrances to the mall 18 We begin by recogniz ing that between 10 000 and 20 000 people come to the mall each day that the Jean Country store is one of 104 specialty shops located in the various aisles of the shopping center that all the stores are clustered in the central part of the mall property and surrounded by parking areas that stretch to the perimeters of the property and that the store itself is one quarter mile away from the Central Park Avenue entrance-the nearest public property for the Union to communicate its message These facts give rise to several concerns bearing on the unrea sonableness of the nontrespassory communication at issue Most significant is the substantial dilution 17 Accordingly we reject the judge s finding that the Union s intended audience was the Jean Country store employees 8 During the hearing Cerbone suggested that the Union might have picketed on the mall property in areas removed from the front of the Jean Country store We find it unnecessary to consider the effectiveness of these private property alternatives because on the day of the picket ing Police Sergeant Skelton acting pursuant to the Respondents wishes effectively ejected the pickets from the entire mall property and informed them that further picketing could be conducted only on the public roads leading to the mall Accordingly the Union had no opportunity to picket at alternative locations on the property The Respondents contend that the Union did not consider mass media communication of its message As we noted in part I of this decision it will be an exceptional case where mass media constitute reasonable alter natives this is not such a case Delivery of the pickets message via mass media e g television radio newspaper mass mailings would have re moved the message entirely from the situs of the labor dispute and con sequently from the awareness of potential customers of the Jean Country store at the time they approached the situs We also note the likely heavy expense for the Union of a mass media communication in the New York City metropolitan area where the store is located Accordingly we find that such a means of communicating the Union s message in this case was not a reasonable alternative See e g Giant Food Markets v NLRB 633 F 2d 18 24-25 (6th Cir 1980) Montgomery Ward & Co 265 NLRB 60 68 (1982) Scott Hudgens supra at 416 See also Seattle First National Bank v NLRB 651 F 2d 1272 1275-1276 (9th Cir 1980) concerning the relationship between the immediacy of the message and its effectiveness of the effectiveness of the Union s message if con veyed from public property because of the sheer physical distance from the mall entrances to the Jean Country store the large number of other stores and the great number of people coming on the property at eight different entrances to whom the Union would have to direct its message An important aspect of the dilution factor is the improbability of identifying the potential customers of the store and communicating to them a message with any real meaning from the mall entrances It is a commonplace that many people enter a shop ping mall particularly one as large as the mall here without knowing in advance exactly what they will purchase or if they will buy at all Well after they have entered the mall they may decide initially to patronize a particular store This im pulse shopper factor has been noted previously see e g Scott Hudgens supra at 417 Because the distance in time and space between the Union s communication of its message on public property to the general public entering the mall and the point when some of those who entered consider whether to patronize the Jean Country store i e become potential customers the meaningfulness of the Union s message would not only be diluted but the message itself would miss a conceivably sub stantial number of potential customers In this case the Union could identify the potential customers of the store and communicate a meaningful message only in a location with relative proximity to the store Another consideration if the Union had to corn municate its message at the mall s entrances given the circumstances in this case, is the chance that the Union might unintentionally enmesh neutral stores in its labor dispute with Jean Country 19 Here there is a reasonable possibility that some people entering the mall in their cars might on glancing at the Union s message assume that the entire shopping center was involved in a labor dis pute and accordingly turn away More significant ly because of the large number of stores at the mall and the time and space distance factor follow ing the Unions communication of its message at the mall entrances there is a distinct likelihood of confusion concerning which store had been identi feed on the picket sign with the result that stores other than Jean Country would be subject to a loss of patronage 20 19 As noted in fn 8 of this decision the possibility of enmeshing neu trals is not a basis in itself for compelling access to private property In this case however it is one consideration that weighs in favor of requir mg that access be permitted 20 Although the possibility of confusion and the enmeshing of neutrals would exist generally for other stores in the mall if the Union s picketing Continued JEAN COUNTRY Because of the foregoing considerations we find that the communication of the Union s message from public property at the entrances to the shop ping center was not a reasonably effective alterna tive and that there was in fact no method of com municating the Union s message effectively other than entry onto the Respondents property In making the accommodation of the exercise of the competing rights our ultimate concern as ex plained in part I of this decision is the extent of impairment of the Section 7 right if access should be denied, in balance with the extent of impairment of the private property right if access should be granted As found above the Respondents right to protect the mall property from the Union s intru sion was exceedingly weak the maintenance of the private nature of the mall property such as it is suffered little if any damage by the specific intru sion the Union made The Section 7 right on the other hand in light of the absence of reasonable al ternatives for the Union to conduct the picketing, would have been severely impaired-substantially destroyed within the meaning of Babcock & Wilcox-without an entry onto the mall property Thus the Section 7 right outweighed the Respond ents right to the privacy of the mall property in this particular context and the Union was entitled to engage in the picketing that it conducted in front of the Jean Country store Accordingly we conclude that the Respondents refusal to permit the Union s picketing and their subsequent use of the police to threaten the pickets with arrest for trespass violated Section 8(a)(1) of the Act CONCLUSIONS OF LAW By demanding that the Union refrain from infor mational picketing protected by Section 7 of the Act and by causing the Yonkers police to threaten pickets with arrest for trespass if they did not cease such protected picketing the Respondents have violated Section 8(a)(1) of the Act REMEDY Having found that the Respondents have en gaged in certain unfair labor practices, we shall order them to cease and desist and to take certain affirmative action designed to effectuate the poll cies of the Act 2 i had been conducted at the entrances it is particularly true regarding Jean West a store not involved in the labor dispute yet having a similar name selling similar merchandise and located in the same aisle as the Jean Country store 2 Respondent Jean Country requested that if it should be determined that the Respondents committed unfair labor practices in this case the Board s order should severely limit the Union s access to the mall for picketing As we have found above the Union s picketing on October 12 was in fact limited peaceful and unobstructive and our order similarly reflects the extent of the protected informational picketing the the Re 19 ORDER The National Labor Relations Board orders that Respondent Brook Shopping Centers Inc as nominee for Dollar Land Syndicate Yonkers New York its officers agents successors and assigns and Respondent Jean Country Yonkers, New York its officers agents, successors and assigns shall 1 Cease and desist from (a) Prohibiting representatives of Local 305 Retail & Wholesale Employees Union AFL-CIO from engaging in peaceful informational picketing protected by the Act in front of the Jean Country store in the Cross County Shopping Center Yon kers New York and causing the Yonkers police to threaten such representatives with arrest for engag mg in such picketing as long as that activity is conducted by a reasonable number of persons and does not unduly interfere with the normal use of facilities or operation of businesses not associated with the Jean Country store (b) In any like or related manner interfering with restraining, or coercing employees in the ex ercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action neces sary to effectuate the policies of the Act (a) Respondent Brook Shopping Centers Inc shall post at its office in the Cross County Shop ping Center copies of the attached notice marked Appendix A Respondent Jean Country shall post at its store in the Cross County Shopping Center copies of the attached notice marked Ap pendix B 22 Copies of the notice on forms pro vided by the Regional Director for Region 2 after being signed by each Respondents authorized rep resentative shall be posted by each Respondent im mediately upon receipt and maintained for 60 con secutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by each Re spondents must permit See e g Emery Realty 286 NLRB 372 fn 16 (1987) Seattle First National Bank 258 NLRB 1222 (1981) Respondent Jean Country additionally requested that the Union be re quired to post maintenance and liability insurance bonds prior to picket ing in the mall implicitly relating the conduct of the Union s picketing to the conduct of the annual chanty and arts and crafts fairs discussed above We see a significant difference between the fairs where between 40 and 75 tables are set up for the sale of merchandise and raffle tickets and the limited picketing in this case We also note the absence of any reasonable supporting rationale offered by the Respondent for restraining Sec 7 activity in this way and we can conceive of none Accordingly we deny the Respondents request 22 If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation al Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board 20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD spondent to ensure that the notices are not altered defaced or covered by any other material (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondents have taken to comply APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form join or assist any union To bargain collectively through representa tives of their own choice To act together for other mutual aid or pro tection To choose not to engage in any of these protected concerted activities WE WILL NOT prohibit representatives of Local 305 Retail & Wholesale Employees Union AFL- CIO from engaging in peaceful informational pick eting protected by the Act in front of the Jean Country store in the Cross County Shopping Center Yonkers New York nor will we cause the Yonkers police to threaten such representatives with arrest for engaging in such picketing as long as that activity is conducted by a reasonable number of persons and does not unduly interfere with the normal use of facilities or operation of businesses not associated with the Jean Country store WE WILL NOT in any like or related manner interfere with restrain or coerce you in the exer cise of the rights guaranteed you by Section 7 of the Act BROOK SHOPPING CENTERS INC As NOMINEE FOR DOLLAR LAND SYNDI CATE The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form join or assist any union To bargain collectively through representa tives of their own choice To act together for other mutual aid or pro tection To choose not to engage in any of these protected concerted activities WE WILL NOT prohibit representatives of Local 305 Retail & Wholesale Employees Union AFL- CIO from engaging in peaceful informational pick eting protected by the Act in front of our store in the Cross County Shopping Center Yonkers New York nor will we cause the Yonkers police to threaten such representatives with arrest for engag mg in such picketing as long as that activity is conducted by a reasonable number of persons and does not unduly interfere with the normal use of facilities or operation of businesses not associated with our store WE WILL NOT in any like or related manner interfere with restrain or coerce you in the exer cise of the rights guaranteed you by Section 7 of the Act JEAN COUNTRY Richard L De Steno Esq for the General Counsel Robert M Ziskin Esq of Melville New York for the Respondent Jean Country Peter J Shatzkin Esq (Szold & Brandwen P C) of New York New York for the Respondent Brook Shopping Centers Inc Richard M Greenspan Esq (Charles R Katz PC) of New York New York for the Charging Party DECISION STATEMENT OF THE CASE STEVEN DAVIS Administrative Law Judge Pursuant to a charge filed on October 14 1983 1 and a first amended charge filed on November 18 by Local 305 Retail and Wholesale Employees Union AFL-CIO I All dates are in 1983 unless otherwise stated JEAN COUNTRY (Union) a complaint was issued by Region 2 of the Na tional Labor Relations Board on November 28 against Jean Country and Brook Shopping Centers Inc as nominee for Dollar Land Syndicate (Brook) The corn plaint alleges that on October 12 Respondents violated Section 8(a)(1) of the Act in that they (a) demanded that the Union refrain from picketing in front of the Jean Country store and (b) caused the Yonkers Police Depart ment to threaten the persons engaged in the picketing with arrest for trespassing unless they ceased picketing in front of the Jean Country store Answers were filed by Respondents in which they denied the material allegations of the complaint The case was heard on February 6 and 17 1984 in New York New York On the entire record including my observation of the demeanor of the witnesses and after due consideration of the brief filed by Jean Country I make the following FINDINGS OF FACT I JURISDICTION Respondent Brook a New York corporation having its office and place of business in Yonkers New York has been engaged in the business of operating shopping centers including the Cross County Shopping Center lo cated in Yonkers New York Annually Respondent Brook in the course and conduct of its business oper ations derives gross revenues in excess of $500 000 and purchases and receives at its Yonkers New York facility goods and materials valued in excess of $50 000 directly from firms located outside the State of New York Respondent Jean Country a New York corporation having its office and place of business in the Cross Court try Shopping Center has been engaged in the business of operating a number of retail stores including a store in the Cross County Shopping Center Respondent Jean country has leased the Jean Country store from Re spondent Brook Annually Respondent Jean Country in the course and counduct of its business operations de rives gross revenues in excess of $500 000 and purchases and receives at its facilities in New York State prod ucts goods and material valued in excess of $50 000 di rectly from suppliers located outside the State of New York Respondents admit and I find that they are employers engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act II ALLEGED UNFAIR LABOR PRACTICES A Facts t 1 Background Jean Country Is one of 104 specialty retail stores locat ed within the Cross County Shopping Center a large privately owned mall in Westchester County which is open to the public for shopping The mall which is open 7 days a week has parking spaces for 5600 cars and re ceives about 10 000 to 20 000 people a day 21 In or about August 1983 during the construction of the Jean Country store Union Business Representative Gaetano Mangano visited the location introduced him self and gave a business card to Jean Country Manager Alvin Feldman and told Feldman that inasmuch as the Jean Country stores were unionized in New York Local 305 is the Union that the store would deal with in West chester County Mangano also mentioned that the Union represents most of the stores here Feldman replied Okay yes we re union no problem and gave Man gano the name of the person to contact Thereafter Mangano had one or two similar short conversations with Feldman 2 In late September or early October 1983 Mangano visited Jean Country and spoke to about four employees on the selling floor He gave them his business card and spoke to them about the advantages of joining the Union He distributed union membership application cards and asked them to sign if they wanted the Union to represent them Mangano was then asked by the store s assistant manager to leave and he did so 2 The picketing On October 12 Mangano visited the office of Ray Cerbone general manager of the Cross County Shopping Center and told the receptionist that he intended to place an educational picket line at Jean Country He was told that Cerbone was not present but that he would return shortly Mangano replied that the picket line would begin in about 1 hour Mangano left Cerbone s office and phoned the Yonkers Police Department and told a lieutenant that he was going to place a picket line at Jean Country The officer said that he would send a sergeant to go over ground rules Mangano then went to the parking lot and took picket signs out of his car At that moment Jean Country Manager Feldman pulled up in his car saw the signs and asked [A]re those for me? Mangano replied that they were Feldman then said You can t picket me here This is a mall Man gano replied Like hell I cant You watch me Feld man phoned Cerbone and told him that the Union in tended to picket the store Mangano then entered the mall and met with Cerbone Mangano said that he had a right to picket and Cerbone replied that according to the rules of the shopping center solicitation and picketing are not allowed Man gano referred to a law or court case that allegedly gave the Union the right to picket and showed a letter to Cer bone dated September 1980 to The Gallena in White Plains New York The letter claimed that The Gallena being a shopping center located in a quasi public location open to the public cannot deny access to the Union in its public areas Cerbone phoned his attorney and asked Mangano if he wanted to speak with him Mangano re fused but offered to have the Union s attorney speak with the shopping center s lawyer Mangano left Cer 2 This according to the credited testimony of Mangano I cannot credit Feldman s testimony that at their first meeting Mangano merely gave Feldman a business card without saying anything It is most unlikely that Mangano an experienced union agent would not have taken the oppor tunity to speak to Feldman in behalf of the Union 22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD bones office and phoned the Unions counsel A short while later Mangano was informed by his legal depart ment that the matter was resolved and he could picket He then told Cerbone that he was going to picket Cer bone replied that the issue had still not been resolved and that he could not picket because the shopping center rules prohibit picketing and solicitation a The picketing which began about 11 30 a m and con tinued for 50 to 55 minutes was conducted by Mangano and two other retired members of the Union none of whom had ever worked at Jean Country Two picket signs were used They bore the following legend To the Public Jean Country is not union The maintenance of a non union store is a threat to wages hours and conditions established by the union Local 305 A F L -C 10 120 Saw Mill River Road Hastings on Hudson New York The two or three pickets walked back and forth in front of the Jean Country store on the public sidewalk or walkway which is about 14 feet wide 4 They picketed 2 to 3 feet from the front window of the store During the picketing people walked past the pickets and entered the store Mangano told passing customers that Jean Country was a nonunion store He asked them not to patronize it and advised them that there were other union stores in the shopping center that carried similar merchandise 5 Shopping Center Chief of Security Frank Pucilla called the Yonkers Police Department and requested that a supervisor be sent because of picketing at the mall Mangano testified that about 12 or 12 15 p m Ser geant John Skelton of the Yonkers Police Department approached and Mangano told him how many pickets there would be and where the picketing would take place Skelton reviewed how the pickets should conduct themselves According to Mangano Pucilla then spoke to Skelton and they both entered Jean Country and spoke to Store Manager Feldman On leaving the store Skelton told Mangano that he was told by Dollar Land Corp that the picketing must cease Skelton also said that if the picketing did not stop the pickets would be arrested for trespass Mangano asked who Dollar Land Corp was and was told by Pucilla that it was the former name of Marks Realty 6 Mangano then asked if the shop ping center was telling him to leave and Pucilla said that it was Mangano then asked where he could picket if he was not allowed to do so in front of Jean Country Skel ton and Pucilla replied that he could picket on the street at Kimball and Central Park Avenues which according 3 This according to the credited testimony of Cerbone and Mangano Although there were some differences in their testimony concerning their conversations that day this summary represents both versions In any event the important fact that there was a request to picket and a refusal is conceded and I therefore need not resolve each variation between the two accounts I accordingly find and conclude that pars 9 and 10 of the complaint that Respondents demanded that the Union refrain from pick eting in front of the Jean Country store have been proven The store has a rear entrance but it is not open to the public 6 At the hearing Mangano identified two other stores at the shopping center whose employees are represented by the Union and that sell items similar to those sold by Jean Country 6 Marks Realty and Improvement Company manages the property for Brook which operates the shopping center to Mangano are at least one fourth mile away from Jean Country Mangano stated that picketing is was unaccept able because it was dangerous and too far away Pucilla testified that he told Skelton on his arrival that picketing was taking place and that the pickets were not allowed there Pucilla then approached Mangano and told him that he did not have permission to picket in the shopping center and that he must obtain such per mission from the management office Mangano replied that he would get a court order Skelton then said fine go get a court order and advised Mangano that if he continued to picket without authorization it would be considered trespassing on private property Sergeant Skelton testified that he was instructed by his captain to investigate a report of a strike He arrived at the scene and Mangano and Pucilla introduced them selves Mangano told him that this was an information al picket line and not a strike Pucilla interjected that the parties attorneys were negotiating whether the Union had the right to picket in front of Jean Country Skelton then went into the store on his own and was told by Manager Feldman that he had no problem inas much as he had no union employees and the store was not being struck Skelton left the store and was told by Pucilla that Marks had passed by saw the pickets and stated he did not want them on the property Skelton then on his own told Mangano that if he insisted on picketing after this directive from Pucilla that he may be locked up for trepassing Mangano replied that he would leave it in the hands of the attorneys Skelton further advised Mangano that he would have to confine his picketing to the access roads to the shopping center I credit the testimony of Sergeant Skelton over that of Mangano and Pucilla to the extent that his testimony contradicts theirs regarding the incident Skelton was the only disinterested neutral person in this encounter and his testimony is supported by his written report of the in cident made on the same day Based on these facts I find and conclude that para graph 11 of the complaint which states that Respondents caused the Yonkers Police Department to threaten the individuals engaged in the picketing with arrest for tres pass unless they ceased picketing in front of Jean Coun try has been proven It is clear as conceded by Pucilla that he told Sergeant Skelton that the pickets were not allowed there and that Marks did not want them on the property Clearly then Respondent Brook thereby announced to the officer that in effect the pickets should be removed Respondent Jean Country Manager Feldman too by stating that the store s employees not being union members and not being struck encouraged the officer to take the position that he did Respondents did not stand idly by as disinterested persons and allow Sergeant Skelton to take the action that he deemed ap propnate Rather their statements to him indicating their displeasure with the picketing and their position that the picketing was not allowed clearly and directly conveyed to him the message that the pickets must be removed Sergeant Skelton used the only means he could to remove them-he threatened them with arrest for tres pass if they continued to picket That Skelton acted on JEAN COUNTRY Respondents suggestion is made crystal clear in his tests mony that he told Mangano that if he insisted on picket ing after this directive from Pucilla that he may be locked up for trespassing Trespass of course is a pri vate right As such it could only be exercised by Re spondents to remove persons from their property It is thus clear and I find that as alleged in the com plaint Respondents caused the Yonkers Police Depart ment to threaten the pickets with arrest unless they ceased picketing in front of Jean Country 3 Other facts Mangano conceded that he did not ask Jean Country Manager Feldman for the names and addresses of his em ployees nor did he ask what the wage rate or the bene fits of the employees were Jean Country employees told Mangano their wage rates but he never inquired of them what benefits they received Mangano did not try to contact Jean Country custom ers by means other than picketing and he did not at tempt to picket in the parking lot areas of the shopping center or on the common walkway areas of the mall other than in front of Jean Country He did not ask for permission to picket on Xavier Drive and general Man ager Cerbone did not tell him that he could picket if he obtained permission to do so Cerbone testified that he did not offer Mangano an alternate place to picket at the shopping center In October 1983 permission was given by the shop ping center for picketing to take place at the New York Telephone Company building at the back mall on Xavier Drive The dispute involved employees of the telephone company and the picketing continued for a couple of days Shopping Center General Manager Cerbone testified that in his opinion because of the large amount of pedes trian traffic at the mall picketing in general in front of stores would interfere with pedestrian traffic and create hazards such as the possibility that pickets might bump into shoppers and create altercations He stated that picketing would be most appropriate at the entrances and exits to the shopping center or within the mall at the intersection of Xavier Drive and Vreoenburgh Avenue and at the rear walkway of the stores Cerbone also testified that certain shows such as a charity fair and an arts and crafts fair are held at the shopping center The two shows which are of 3 days duration at different times of the year consist of various individuals or organizations setting up tables and selling items and raffle tickets The organizers of the shows must (a) obtain permission in advance from the shopping center (b) obtain a permit from the city of Yonkers (c) post maintenance and insurance bonds and (d) in the case of the charity fair obtain the approval of the char ity it represents The charity fair utilizes 70 to 75 tables of wares and the arts and crafts fair has about 40 tables In the past these shows were held on the pedestrian walkway areas of the mall itself in front of the stores However because the tables interfered with pedestrian traffic they have been moved to one area the security parking lot III ANALYSIS AND DISCUSSION 23 A The Objective of the Picketing In my opinion the case turns on the threshold ques tion presented Whether the true purpose of the picket ing was to compel Jean Country s compliance with pre vailing area standards or whether the picketing was for a recognitional and/or organizational objective As the Board has recognized a union has a legitimate interest apart from organization or recognition that em ployers meet prevailing pay scales and employee bene fits for otherwise employers paying less than prevailing wage scales would ultimately undermine area standards Plumbers Local 741 (Keith Riggs) 137 NLRB 1125 1126 (1962) However because the usual and normal purpose of a union is to organize the unorganized and to negotiate collective bargaining contracts the area standards doc trine comes into play only when a union has foresworn its normal role to pursue such ends and has elected only to protect that which it has already attained in the area from unfair competitive advantage Sales Delivery Driv ers Local 296 (Alpha Markets) 205 NLRB 462 469 (1973) Thus when a union claims that its picketing seeks to preserve area standards the Board will scrutinize its conduct to ascertain whether such an avowed object is used merely as a pretext to disguise a recognitional object Retail Clerks Local 899 (State Mart) 166 NLRB 818 822 (1967) enfd 404 F 2d 855 (9th Cir 1968) There are many factors here that make the determina Lion of the true objective of the picketing difficult The General Counsels theory that the Unions actions constituted valid area standards picketing is supported by the facts that (a) there was a 2 month interval between the demand for recognition and the picketing 7 and a 2 to 3 week hiatus between the organizational drive and the picketing (b) the picketing was conducted with valid area standard signs (c) no picketing for an avowed orga nizational and/or recognitional objective was ever con ducted (d) the Union never advised Jean Country that it intended to picket for recognition (e) no activities incon sistent with the area standards picketing were undertaken contemporaneously with the picketing by the Union (f) no statements to Jean Country employees or to that em ployer were made at the time of the picketing which in dicated that the picketing was other than for its stated area standards purpose and (g) although the Union sought to organize the employees and obtain recognition there was no evidence that it continued to do so at the time the picketing began The Respondents theory that the picketing was for an organizational and/or recognitional objective is support ed by the facts that (a) 2 months prior to the picketing a demand for recognition was made by the Union (b) 2 to 3 weeks prior to the picketing the Union engaged in an organizing campaign among Jean Country s employees 7 I find that Mangano requested recognition by his statement to Feld man in August during the construction of the store that most of the stores here are represented by the Union and inasmuch as Jean Coun try s stores in New York are unionized the Union would be the organiza tion that the store would deal with in Westchester County 24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (c) the Union did not disclaim an interest in representing the employees prior to the picketing and (d) the Union s assertions on its picket sign that Jean Country has sub standard wages hours and conditions have not been proven and the Union has undertaken no investigation of the facts to ascertain the truth of the claims set forth on its sign 8 I must conclude that the Union did not picket for a valid area standards purpose I am aware that when unions have been found to have engaged in picketing for an illegal objective and have sought to picket for another objective the Board has long rejected the application of a presumption of the continuity of the illegal objective Machinists Local 1173 (Alhambra Motors) 266 NLRB 91 (1983) Here of course there was no initial illegal picketing only con duct prior to the picketing demonstrating an organiza tional and recognitional interest in Jean Country by the Union Thus although a presumption of a continuing it legal purpose may not be applied when the Union s avowed area standards objective can be shown to be false or otherwise unsupportable then an organizational or recognitional object can be inferred Sales Delivery Drivers Local 296 (Alpha Markets) 205 NLRB 462 469 (1973) Moreover this principle that the presumption will not apply has referred to cases in which the union has renounced the initial unlawful object which is not the case here Carpenters Local 1245 (New Mexico Proper ties) 229 NLRB 236 241 (1977) Illegal picketing has been found when organizational and recognitional conduct other than picketing have oc curred 8 days and 5 1/2 weeks respectively prior to fa cially valid area standards picketing Minneapolis Trades Council (Krasen Plumbing) 229 NLRB 98 103 (1977) Building Trades Council (Pettinaro Construction) 230 NLRB 42 47 (1977) In both cases the unions informed the employers prior to the picketing that the sole objec tive thereof was to protest the destruction of area stand ards Such notification is not present here Area standards picketing can only be justified where in fact the picketed employers mode of op eration can be shown to be substandard in compari son with the negotiated area standards This neces sanly means that there must have been an investiga tion and an evaluation of comparative standards carried out with as great a degree of thoroughness as the circumstances will permit Automotive Em ployees Local 88 (West Coast Cycle Supply Co) 208 NLRB 679 680 (1974) The only evidence adduced here is that Union Agent Mangano asked Jean Country s employees what their wages were There is no evidence that inquiries were made concerning their hours or conditions Nor did 8 The picket sign does not expressly state that Jean Country s wages hours and conditions are substandard The sign s language that Jean Country is nonunion however and the maintenance of a nonunion store is a threat to wages hours and conditions established by the union per mits a fair inference to be drawn that the intended audience-the custom ers of Jean Country-will associate the claim of Jean Country s nonunion status with the further assertion that that store has lesser wages hours and conditions than the area standard Mangano ask any official of Jean Country what the wages hours or conditions of the employees were Al though the Union knew the wages of Jean Country s em ployees it was not proven at trial that such wages were less than the area standard Inasmuch as the Union did not possess the knowledge with which to make the claim on its picket signs that Jean Country s wages hours and conditions were substandard I find and conclude that its picketing was not to protest the destruction of area standards but was for an organizational and/or recogni tional objective Longshoremen Local 1291 (Trailer Marine) 266 NLRB 1204 fn 2 (1983) That finding is supported by the fact that an active organizational cam paign among Jean Country s employees had been con ducted only 2 to 3 weeks before the start of the picket mg with no indication that the Union ever lost its inter est in representing those employees Moreover the union agent s statement to the Employers manager some 2 months before the picketing that Local 305 is the Union it would deal with shows a clear intent that by virtue of Jean Country operating in Westchester County it should recognize the Union as the representative of its employ ees B The Alleged Violations of the Act Inasmuch as I have found that the picketing was for an organizational and/or recognitional objective the standards applicable to nonemployee organizational ac tivity on private property must be applied to the facts NLRB v Babcock & Wilcox Co 351 U S 105 (1956) involved an employers refusal to permit distribution of union literature by nonemployee union organizers on company owned parking lots The Supreme Court held that there must be an accommodation between the em ployees Section 7 rights to organize and the employer s right to prohibit its property from being used by outsid ers The Court stated Accommodation between the two must be obtained with as little destruction of one as is consistent with the maintenance of the other 351 U S at 112 In defining how the balance might be struck the Court held that union organizers who seek to solicit for union membership may intrude on an employers private prop erty if no alternative means exi[s]t for communicating with the employees Hudgens v NLRB 424 U S 510 511 (1976) Hudgens involved picketing to protest an employer s failure to agree to the union s contract demands The picketing occurred at a shopping center and was en gaged in by employees of the store being picketed al though they were actually working at the store s ware house not located in the shopping center The Supreme Court emphasized the difference between the picketing in Babcock & Wilcox conducted by outsiders and that conducted in Hudgens by the employees of the picketed store and stated that the accommodation between the two conflicting rights may fall at differing points along the spectrum depending on the nature and strength of the respective Section 7 rights and private property rights asserted in any given context 424 U S at 522 JEAN COUNTRY 25 On remand the Board in Scott Hudgens 230 NLRB 414 416 (1977) in finding that the employers threat to cause the arrest of the pickets violated the Act noted that in Babcock & Wilcox the intended audience was the employees sought to be organized and that If the employees are beyond the reach of reasonable union efforts to communicate with them it is the employees right to receive information on the right to organize that is abrogated when an employer denies nonemployee union organizers access to the employer s property The Board further noted that In an organizational campaign the group of em ployees whose support the union seeks is specific and often is accessible by means of communication other than direct entry of the union organizers onto the employer s property such as meeting employees on the street home visits letters and telephone calls Ibid The Supreme Court made the following observation Experience with trespassory organizational solici tation by nonemployees is instructive in this regard While Babcock indicates that an employer may not always bar nonemployee union organizers from his property his right to do so remains the general rule To gain access the union has the burden of showing that no other reasonable means of commu nicating its organizational message to the employees exists or that the employers access rules discnml nate against union solicitation That the burden im posed on the union is a heavy one is evidenced by the fact that the balance struck by the Board and the courts under the Babcock accommodation prin ciple has rarely been in favor of trespassory organs zational activity Sears Roebuck & Co v Carpenters 436 US 180 205 (1978) Evidence at trial established that Union Agent Man gano did not request the names and addresses of the em ployees from Jean Country nor did the Union attempt to use any means of communicating with the employees other than by speaking with them on the selling floor of the store There has been no showing here that unique circumstances exist that should permit access to Re spondents private property for picketing for an organs zational purpose NLRB v S & H Grossingers Inc 372 F 2d 26 (2d Cir 1967) I accordingly find and conclude that there is no show ing that the Union lacked an alternative means of com municating with Jean Country s employees other than picketing and that a balancing of the conflicting interests must be struck in favor of the Respondents private prop erty rights Nor do I find that Respondents refusal to permit the Union to picket discriminated against the Union by per mitting certain charity and arts and crafts fairs to be held on the shopping center premises Those activities are of a different nature from the picketing of Jean Country The fairs involve the selling of merchandise including the so licitation of chances for the benefit of the organiza tions involved It cannot be said that by allowing the fairs Respondents have discriminated against the Union s picketing to organize Jean Country s employees 9 I therefore find and conclude that the Respondents demand that the Union refrain from picketing in front of Jean Country and their causing the Yonkers Police De partment to threaten the pickets with arrest for trespass unless they ceased picketing in front of Jean Country did not violate the Act I will accordingly recommend that the complaint be dismissed in it entirety IV ALTERNATIVE FINDINGS In the event that the Board or courts find that the picketing was in fact for a valid area standards objec tive I would conclude that Respondents violated the Act as alleged in the complaint by demanding that the Union refrain from picketing in front of Jean Country and by their causing the Yonkers Police Department to threaten the pickets with arrest for trespass unless they ceased picketing in front of Jean Country I base this alternative finding on Giant Food Markets 241 NLRB 727 (1979) enf denied 633 F 2d 18 (6th Cir 1980) which I believe is dispositive of the issues In that case the Board found that the union lawfully conducted area standards picketing in a shopping center with pick ets who were never employed by the picketed company The Board further found that the pickets intended audi ence was the employees and the potential customers of the picketed company The Board struck the balance in favor of the pickets over the property rights of the pick eted store for the following reasons (a) the picketing lo cated at the employers store will inure to the benefit of the employers employees (b) the potential customers of the store became readily identifiable only when they de cided to enter the store (c) requiring that the picketing be conducted at the entrances to the parking lot (250 feet from the store entrance) would too greatly dilute the unions message for it to be meaningful and it might enmesh neutral employees in its dispute with the store at issue The facts in the instant case are more persuasive than those in Giant Food Thus here inasmuch as the Cross County Shopping Center contains some 104 retail stores the potential customers of Jean Country would only become known when they enter that store Unlike Giant a two store center the enormity of this shopping center would make picketing at the entrances to the center as suggested by Respondents totally meaningless to the in tended audience-the potential customers of Jean Court try-who may first decide that they wish to patronize the store only after they enter the center and thus not 9 There was no evidence of any rules prohibiting solicitation or picket mg at the shopping center Indeed picketing had been conducted by em ployees of the New York Telephone Company on the center premises during the same month as the picketing at Jean Country The General Counsel cannot rely on the telephone company picketing for support here because such picketing was in the nature of an economic strike and not for an organizational or recognitional purpose Scott Hudgens 230 NLRB 414 (1977) 26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD take heed of the signs at the entrance to it Moreover the danger of enmeshing neutrals by requiring picketing at the center entrances is far greater here than in the two store Giant center inasmuch as the potential shop per on seeing the picket signs might assume that the entire shopping center is being struck In addition the similarity of names between Jean Country and Jean West another store at the shopping center that sells simi lar merchandise would certainly have the potential to lead potential shoppers to erroneously believe on a quick look at the picket signs at the entrance to the shop ping center that Jean West is the object of the picketing I do not place any reliance on Respondents hypotheti cal testimony that picketing might create altercations due to shoppers being jostled by the pickets or that it would in some way interfere with pedestrian traffic There has been no proof of such interference or any ap parent likelihood that it would occur because of the broad walkway in front of the store Respondents could cite no such instances of such interference with pedestri an traffic during the picketing that did occur on October 12 Accordingly assuming that valid area standards pick eting was being conducted I would strike the balance in favor of picketing occurring in front of the Jean Country store Giant Food Markets supra Inasmuch as I have already found that Respondents demanded that the Union refrain from picketing in front of the Jean Country store and that they caused the Yon kers Police Department to threaten the pickets with arrest for trespass unless they ceased such picketing I would find that such actions violated Section 8(a)(1) of the Act Giant Food Markets supra at 729 Seattle First National Bank 243 NLRB 898 (1979) CONCLUSIONS OF LAW 1 Respondents Brook Shopping Centers Inc as nominee for Dollar Land Syndicate and Jean Country and each of them are employers engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act 2 The Union Local 305 Retail & Wholesale Employ ees Union AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act 3 On October 12 1983 the Union engaged in picket ing in front of Jean Country for an organizational and/or recognitional objective 4 Respondents did not violate the Act by demanding that the Union refrain from picketing in front of the Jean Country store or by causing the Yonkers Police Depart ment to threaten the pickets with arrest for trespass unless they ceased picketing in front of the Jean Country store 5 Respondents have not engaged in the violations of the Act as alleged in the complaint [Recommended Order for dismissal omitted from pub lication ]